Citation Nr: 0527868
Decision Date: 10/14/05 Archive Date: 10/25/05
DOCKET NO. 02-07 796 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESSES AT HEARING ON APPEAL
The appellant, H.G., and G.G.
ATTORNEY FOR THE BOARD
D. Hachey, Associate Counsel
INTRODUCTION
The veteran served on active duty in the United States Army
Reserve from August 1961 to February 1962, with additional
periods of verified active duty for training (ADT) in July
1962, August 1963, and August 1964. He died in February
1998. The appellant is his surviving spouse.
This case comes to the Board of Veterans' Appeals (the Board)
on appeal from a November 1998 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Houston, Texas (the RO).
Procedural history
In February 1998, the RO received the appellant's claim of
entitlement to service connection for the cause of the
veteran's death. The November 1998 rating decision denied
the claim, and she appealed.
The appellant, H.G., and G.G. subsequently presented
testimony before the undersigned Veterans Law Judge (VLJ) at
the RO in February 2003. A transcript of this hearing has
been associated with the claims folder.
Following the February 2003 hearing, the Board remanded the
case in August 2003 for the purpose of obtaining additional
service records. After the development requested by the
Board was accomplished, the RO again denied the claim in a
July 2005 supplemental statement of the case (SSOC). The
case is now once again before the Board.
FINDINGS OF FACT
1. The veteran died in February 1998; his death certificate
lists the immediate cause of death as metastic colon cancer.
No autopsy was performed.
2. At the time of his death, the veteran was service
connected for bilateral hearing loss, rated as noncompensably
disabling, and tinnitus, rated as 10 percent disabling.
3. A preponderance of evidence of record demonstrates that
the veteran was not exposed to ionizing radiation during
service, and that his death was unrelated to any incident of
service.
CONCLUSION OF LAW
Service connection for the cause of the veteran's death is
not warranted. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. §§
3.303, 3.309, 3.311, 3.312 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant is seeking service connection for the cause of
the veteran's death. She essentially contends that the
veteran was exposed to ionizing radiation at the White Sands
Missile Proving Grounds (White Sands) while on ADT in July
1962, and that such exposure resulted in the veteran's fatal
colon cancer.
In the interest of clarity, the Board will review the
applicable law and regulations, briefly describe the factual
background of this case, and then proceed to analyze the
claim and render a decision.
The Veterans Claims Assistance Act of 2000
The Board has given consideration to the provisions of the
Veterans Claims Assistance Act of 2000 (VCAA) [codified as
amended at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107) (West
2002)]. The VCAA eliminated the former statutory requirement
that claims be well grounded. Cf. 38 U.S.C.A. § 5107(a)
(West 1991). The VCAA includes an enhanced duty on the part
of VA to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits. The VCAA
also redefines the obligations of VA with respect to its
statutory duty to assist claimants in the development of
their claims. Regulations implementing the VCAA have been
enacted. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) [to be
codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
and 3.326(a)].
Except for provisions pertaining to claims to reopen based on
the submission of new and material evidence, which are not
applicable here, the VCAA is applicable to all claims filed
on or after the date of enactment, November 9, 2000, or filed
before the date of enactment but not yet final as of that
date. The provisions of the VCAA and the implementing
regulations are, accordingly, applicable to this case. See
Holliday v. Principi, 14 Vet. App. 282-83 (2001) [the Board
must make a determination as to the applicability of the
various provisions of the VCAA to a particular claim].
The Board has carefully considered the provisions of the VCAA
and the implementing regulations in light of the record on
appeal, and for reasons expressed immediately below finds
that the development of this issue has proceeded in
accordance with the provisions of the law and regulations.
The VCAA alters the legal landscape in three distinct ways:
standard of review, notice and duty to assist. The Board
will now address these concepts within the context of the
circumstances presented in this case.
Standard of review
As noted above, the concept of a well-grounded claim was
eliminated by the VCAA. The current standard of review is as
follows.
After the evidence has been assembled, it is the Board's
responsibility to evaluate the entire record. 38 U.S.C.A. §
7104(a) (West 2002). When there is an approximate balance of
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2004)
[reasonable doubt to be resolved in veteran's favor]. In
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United
States Court of Appeals for Veterans Claims (the Court)
stated that "a veteran need only demonstrate that there is
an 'approximate balance of positive and negative evidence' in
order to prevail." To deny a claim on its merits, the
preponderance of the evidence must be against the claim.
Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing
Gilbert, 1 Vet. App. at 54.
Notice
The VCAA requires VA to notify the claimant and the
claimant's representative, if any, of any information and any
medical or lay evidence not previously provided to VA that is
necessary to substantiate the claim. As part of the notice,
VA is to specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant.
See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002) [a letter from VA to an
appellant describing evidence potentially helpful to the
appellant but not mentioning who is responsible for obtaining
such evidence did not meet the standard erected by the VCAA].
To comply with the aforementioned VCAA requirements, the RO
must satisfy the following four requirements.
First, the RO must inform the claimant of the information and
evidence not of record that is necessary to substantiate the
claim. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. §
3.159(b)(1) (2004). The Board observes that the appellant
was notified by the May and August 2002 statements of the
case (SOCs) and the July 2005 SSOC of the pertinent law and
regulations (including those relating to radiation exposure),
of the need to submit additional evidence on her claim, and
of the particular deficiencies in the evidence with respect
to her claim.
More significantly, letters were sent to the appellant in May
2002 and May 2004, which were specifically intended to
address the requirements of the VCAA. The May 2002 letter
from the RO specifically notified the appellant that to
support a claim for service connection for the cause of the
veteran's death, the evidence must show "[t]he cause of
death", "[a]n injury, disease, or other event in service"
and a "relationship between the cause of death and the
injury, disease, or event in service."
Second, the RO must inform the claimant of the information
and evidence VA will seek to provide. See 38 U.S.C.A. § 5103
(West 2002); 38 C.F.R. § 3.159(b)(1) (2004). In the May 2004
VCAA letter, the appellant was informed that VA was
responsible for obtaining "[r]elevant records held by any
Federal agency" including "medical records from the
military, from VA hospitals (including private facilities
where VA authorized treatment), or from the Social Security
Administration." She was further advised that VA would make
"reasonable efforts" to obtain "[r]elevant records not
held by any Federal agency" including "State or local
governments, private doctors and hospitals or current or
former employers." The appellant was also notified that VA
would assist her by "getting a medical opinion if we decide
it's necessary to make a decision on your claim."
Third, the RO must inform the claimant of the information and
evidence the claimant is expected to provide. See 38
U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2004).
The May 2004 letter notified the appellant that she "must
give us enough information about your records so that we can
request them from the person or agency that has them . . .
[i]t's your responsibility to make sure that we receive all
requested records that aren't in the possession of a Federal
department or agency" (emphasis in original). More
specifically, the May 2002 letter instructed the appellant to
"[c]omplete, sign and return the enclosed VA Form 21-4142,
"Authorization for Release of Information . . . [u]se a
separate form for each doctor or hospital where you were
treated." She was advised to include "the name of the
person, agency, or company who has the relevant records;"
"the address of this person, agency, or company;" "the
approximate time frame covered by the records;" and "the
condition for which [the] veteran was treated, in the case of
medical records" [emphasis in original]. Moreover, the
appellant was notified that she "may submit any
documentation demonstrating that the veteran was exposed to
radiation and the amount of such exposure during his active
duty for training."
Finally, the RO must request that the claimant provide any
evidence in her possession pertaining to the claim. See 38
U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2004).
The May 2004 letter included notice that "if there is any
other evidence or information that you think will support
your claim, please let us know . . . [i]f the evidence is in
your possession, please sent it to us." This request
substantially complies with the requirements of 38 C.F.R. §
3.159 (b) in that it informed the appellant that she could
submit or identify evidence other than what was specifically
requested by the RO.
The Board additionally notes that even though the May 2004
letter requested a response within 60 days, it also expressly
notified the appellant that she had one year to submit the
requested information and/or evidence, in compliance with
38 U.S.C.A. § 5103(b) [evidence must be received by VA within
one year from the date notice is sent]. The one-year period
has since expired.
In short, the record indicates that the veteran received
appropriate notice under 38 U.S.C.A. § 5103 and Quartuccio.
One final comment regarding notice is in order. A review of
the record reveals that the appellant was not provided with
notice of the VCAA prior to the initial adjudication of her
claim in November 1998. See Pelegrini v. Principi,
17 Vet. App. 412 (2004). The Board notes, however, that such
action was a practical and legal impossibility because the
initial adjudication of the claim in November 1998 predated
the enactment of the VCAA in November 2000. VA's General
Counsel has determined that failure to provide VCAA notice in
such circumstances does not constitute error. See VAOPGCPREC
7-04 [failure to provide VCAA notice prior to the enactment
of the VCAA does not constitute error]. Following VCAA
notice compliance action, the claim was readjudicated, and a
SSOC was provided to the appellant in July 2005. Thus, any
concerns expressed by the Court in Pelegrini as to
adjudication of the claim before issuance of a VCAA notice
letter have been rectified by the subsequent readjudication
of the claim. Therefore, there is no prejudice to the
appellant in proceeding to consider her claim on the merits.
The appellant herself has not alleged that any prejudice
exists due to the timing of the VCAA notice. See Mayfield v.
Nicholson, 19 Vet. App. 103 (2005).
Duty to assist
In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. The law provides that the
assistance provided by VA shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim. An examination is deemed "necessary" if the
evidence of record (lay or medical) includes competent
evidence that the claimant has a current disability, or
persistent or recurrent symptoms of disability; and indicates
that the disability or symptoms may be associated with the
claimant's active military, naval, or air service; but does
not contain sufficient medical evidence for VA to make a
decision on the claim. See 38 U.S.C.A. § 5103A (West 2002);
38 C.F.R. § 3.159 (2004).
The Board finds that all relevant evidence necessary for an
equitable resolution of the issue on appeal has been
identified and obtained, to the extent possible. The
evidence of record includes service medical and personnel
records, extensive private treatment records, evidence from
the Defense Threat Reduction Agency (DTRA), records from the
Social Security Administration, various statements from H.G.,
and voluminous Internet research materials submitted by the
appellant. The appellant and her representative have not
identified any outstanding evidence.
In short, the Board has carefully considered the provisions
of the VCAA in light of the record on appeal, and for the
reasons expressed above finds that the development of the
claim has been consistent with the provisions of the VCAA.
The Board adds that general due process concerns have been
satisfied in connection with this appeal. See 38 C.F.R.
§ 3.103 (2004). The appellant engaged the services of a
representative, was provided with ample opportunity to submit
evidence and argument in support of her claim, and presented
testimony before the undersigned VLJ at the RO in February
2005.
Accordingly, the Board will proceed to a decision on the
merits as to the issue on appeal.
Pertinent law and regulations
Service connection - in general
In general, service connection may be granted for disability
or injury incurred in or aggravated by active military
service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §
3.303 (2004). Service connection may also be granted for
disability shown after service, when all of the evidence,
including that pertinent to service, shows that it was
incurred in service. See 38 C.F.R. § 3.303(d) (2004); Cosman
v. Principi, 3 Vet. App. 303, 305 (1992).
In order to establish service connection for the claimed
disorder, there must be
(1) medical evidence of a current disability; (2) medical, or
in certain circumstances, lay evidence of in-service
incurrence or aggravation of a disease or injury; and (3)
medical evidence of a nexus between the claimed in-service
disease or injury and the current disability. See Hickson v.
West, 12 Vet. App. 247, 253 (1999). The determination as to
whether these requirements are met is based on an analysis of
all the evidence of record and the evaluation of its
credibility and probative value. See Baldwin v. West, 13
Vet. App. 1, 8 (1999).
Service connection - cause of death
In order to establish service connection for the cause of the
veteran's death, the medical evidence must show that
disability incurred in or aggravated by service either caused
or contributed substantially or materially to cause death.
38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2004).
Service connection - radiation exposure
Service connection for conditions claimed to be due to
exposure to ionizing radiation in service can be established
in any of three different ways. See Davis v. Brown, 10 Vet.
App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71
(1997). First, there are diseases that are presumptively
service connected in radiation-exposed veterans under 38
U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d). Second, service
connection can be established under 38 C.F.R. § 3.303(d) with
the assistance of the procedural advantages prescribed in 38
C.F.R. § 3.311, if the condition at issue is a radiogenic
disease. Third, direct service connection can be established
under 38 C.F.R. § 3.303(d) by showing that the disease was
incurred during or aggravated by service without regard to
the statutory presumptions. See Combee v. Brown, 34 F.3d
1039, 1043-44 (Fed. Cir. 1994). Under Combee, VA must not
only determine whether a veteran had a disability recognized
by VA as being etiologically related to exposure to ionizing
radiation, but must also determine whether the disability was
otherwise the result of active service. In other words, the
fact that the requirements of a presumptive regulation are
not met does not in and of itself preclude a claimant from
establishing service connection by way of proof of actual
direct causation.
A "radiation-exposed veteran" is defined by 38 C.F.R. §
3.309(d)(3) as a veteran who while serving on active duty or
on active duty for training or inactive duty training,
participated in a radiation-risk activity. "Radiation-risk
activity" is defined to mean onsite participation in a test
involving the atmospheric detonation of a nuclear device; the
occupation of Hiroshima, Japan or Nagasaki, Japan by United
States forces during the period beginning on August 6, 1945,
and ending on July 1, 1946; or internment as a prisoner of
war (or service on active duty in Japan immediately following
such internment) during World War II which resulted in an
opportunity for exposure to ionizing radiation comparable to
that of the United States occupational forces in Hiroshima or
Nagasaki during the period from August 6, 1945 through July
1, 1946. 38 C.F.R. § 3.309(b)(i), (ii) (2004).
Diseases presumptively service connected for radiation-
exposed veterans under the provisions of 38 U.S.C.A. §
1112(c) and 38 C.F.R. § 3.309(d)(2) are: leukemia (other than
chronic lymphocytic leukemia), cancer of the thyroid, cancer
of the breast, cancer of the pharynx, cancer of the
esophagus, cancer of the stomach, cancer of the small
intestine, cancer of the pancreas, multiple myeloma,
lymphomas (except Hodgkin's disease), cancer of the bile
ducts, cancer of the gall bladder, primary liver cancer
(except if cirrhosis or hepatitis B is indicated), cancer of
the salivary glands, cancer of the urinary tract; bronchiolo-
alveolar carcinoma; cancer of the bone; cancer of the brain;
cancer of the colon; cancer of the lung; and cancer of the
ovary. 38 U.S.C.A. § 1112(c)(2); 38 C.F.R. § 3.309(d).
If a claimant does not qualify as a "radiation-exposed
veteran" under 38 C.F.R. § 3.309(d)(3) and/or does not
suffer from one the presumptive conditions listed in 38
C.F.R. § 3.309(d)(2), the veteran may still benefit from the
special development procedures provided in 38 C.F.R. § 3.311
if the veteran suffers from a radiogenic disease and claims
exposure to ionizing radiation in service. Under 38 C.F.R.
§ 3.311, "radiogenic disease" means a disease that may be
induced by ionizing radiation and shall include the
following: (i) All forms of leukemia except chronic lymphatic
(lymphocytic) leukemia; (ii) Thyroid cancer; (iii) Breast
cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver cancer;
(vii) Skin cancer; (viii) Esophageal cancer; (ix) Stomach
cancer; (x) Colon cancer; (xi) Pancreatic cancer; (xii)
Kidney cancer; (xiii) Urinary bladder cancer; (xiv) Salivary
gland cancer; (xv) Multiple myeloma; (xvi) Posterior
subcapsular cataracts; (xvii) Non-malignant thyroid nodular
disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma;
(xx) Tumors of the brain and central nervous system; (xxi)
Cancer of the rectum; (xxii) Lymphomas other than Hodgkin's
disease; (xxiii) Prostate cancer; and (xxiv) Any other
cancer. 38 C.F.R. § 3.311(b)(2). Section 3.311(b)(5)
requires that colon cancer become manifest 5 years or more
after exposure. 38 C.F.R. § 3.311(b)(5).
Under the special development procedures in § 3.311(a), dose
data will be requested from the Department of Defense in
claims based upon participation in atmospheric nuclear
testing, and claims based upon participation in the American
occupation of Hiroshima or Nagasaki, Japan, prior to July 1,
1946. 38 C.F.R. § 3.311(a)(2) (2004). In all other claims,
38 C.F.R. § 3.311(a) requires that a request be made for any
available records concerning the veteran's exposure to
radiation. These records normally include but may not be
limited to the veteran's Record of Occupational Exposure to
Ionizing Radiation (DD Form 1141), if maintained, service
medical records, and other records which may contain
information pertaining to the veteran's radiation dose in
service. All such records will be forwarded to the Under
Secretary for Health, who will be responsible for preparation
of a dose estimate, to the extent feasible, based on
available methodologies. 38 C.F.R. § 3.311(a)(2)(iii)
(2004).
Factual background
The veteran's service personnel records establish that he
served on ADT from July 1, 1962 to July 15, 1962. His
official "Record of Assignments" indicates that he was
stationed at Ft. Bliss, Texas during this time period. There
is no indication in the veteran's service personnel records
that he was ever stationed in New Mexico or White Sands, nor
is there any indication that he was temporarily assigned to
these locations.
Service medical records are negative for any complaints or
clinical findings pertaining to cancer of any kind, and are
negative for treatment due to radiation exposure. These
records also contain no record of treatment in New Mexico or
at the White Sands facility.
Private medical records following service include an initial
diagnosis of colon cancer in 1993. The veteran regularly
received treatment for this condition from that time until he
eventually succumbed to the disease in February 1998. These
records, however, contain no mention of the alleged radiation
exposure and contain no statement serving to link the
veteran's fatal colon cancer to such exposure.
In an October 1998 letter, the DTRA indicated that a review
of the veteran's military records failed to show that he was
ever sent to the Pacific Proving Grounds (PPG) or the Nevada
Test Site (NTS) (the only sites the where the DTRA indicated
that atmospheric nuclear testing took place in 1962). The
DTRA further indicated that a search of Army records failed
to document the veteran's participation in atmospheric
nuclear testing. Moreover, the agency indicated that "after
a careful search of dosimetry data, we found no record of
radiation exposure for him." The National Personnel Records
Center (NPRC) likewise indicated that after of search of
their records, no DD 1141 (record of in-service radiation
exposure) was in existence for the veteran.
The record also contains multiple Internet articles submitted
by the appellant that chronicle the history of atmospheric
nuclear testing from Operation TRINITY in 1945 to Operations
DOMINIC II and PLOWSHARE in the early 1960s. These articles
also indicate that low-yield subsurface nuclear testing was
conducted in New Mexico in 1962. Other articles submitted by
the appellant center on the potential health risks of
radiation exposure, even in small doses. They also generally
discuss the basic chemistry behind nuclear weapons and other
nuclear technologies such as nuclear power plants and medical
treatment modalities.
Also included in the record are multiple written statements
and testimony from H.G., another member of the veteran's
reserve unit. H.G. contended that while serving on ADT at
Ft. Bliss in July 1962, he and the veteran were selected to
go to White Sands in New Mexico to observe missile
detonation(s). He further indicated that they were "ordered
to dig latrines and foxholes at ground zero where there was
absolutely no plant life at all or animals, only a green
glassy and velvet-type cover." See November 1999 statement,
at 1. H.G. also contended that "[w]e observed missile
detonations and dug foxholes at ground zero where we stayed
for at least two (2) days . . . [w]e were brought lunch and
ate/drank on site, and also utilized the latrines to relieve
ourselves . . . [w]e were never warned of any danger of
exposure to radiation." Id. H.G. also noted that he too
suffers from colon cancer, and that such was diagnosed three
years after the veteran's diagnosis.
The appellant has submitted multiple statements alleging that
her husband's colon cancer was the result of radiation
exposure due to experiences similar to those outlined by H.G.
Analysis
As noted above, the appellant contends that the veteran was
exposed to ionizing radiation while on ADT in July 1962. She
claims that during this period the veteran was sent to White
Sands in New Mexico, where he was allegedly exposed to
radiation, which she believes resulted in his fatal colon
cancer. The appellant has proffered two different theories
as to how such exposure occurred. First, she alleges that
the White Sands facility was the site of Operation TRINITY,
where atmospheric nuclear testing took place in July 1945.
Being at that site, she contends, exposed the veteran to
residual radiation, which produced colon cancer.
Alternatively, the appellant contends that underground
nuclear testing took place at White Sands in 1962, and that
such testing resulted in the veteran being exposed to
radiation while working at that facility.
Initially, the Board observes that the appellant does not
appear to be contending, nor does the record in any way
demonstrate, that the veteran's fatal cancer was manifested
during his Reserve service or for that matter for several
decades after he left service. Rather, she contends that his
alleged July 1962 ADT activities at White Sands resulted in
radiation exposure, which eventually caused his demise over
three decades later due to metastic colon cancer.
Moreover, the appellant has not suggested that the veteran's
death was in any way otherwise related to his military
service, to include his service-connected hearing loss and
tinnitus. In any event, a review of the medical evidence of
record shows that these conditions were unrelated to the
veteran's death.
The Board will address in turn the three methods, discussed
in detail above, through which service connection based upon
radiation exposure may be granted (i.e. § 3.309(d), § 3.311,
and Combee).
Presumptive service connection - radiation exposure
As noted above, in order to establish presumptive service
connection for the cause of the veteran's death under
38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d), the veteran
must have died from a disease listed in 38 C.F.R.
§ 3.309(d)(2), and have been a radiation-exposed veteran who
participated in a radiation-risk activity as such terms are
defined in the regulation. See 38 C.F.R. § 3.309 (d)(3)
(2004). In the instant case, the veteran's death certificate
lists the cause of death as metastic colon cancer. Colon
cancer is one of the listed disease under 38 C.F.R.
§ 3.309(d)(2) (2004).
The record does not, however, demonstrate that the veteran
was a radiation-exposed veteran who participated in a
radiation-risk activity. The appellant contends that the
veteran was exposed to radiation by virtue of either (1) his
presence in July 1962 at the TRINITY test site or (2) his
presence at underground nuclear tests conducted at White
Sands in July 1962. Even assuming arguendo that the veteran
was present at these sites during his ADT in July 1962 (and
for the reasons explained below, the evidence demonstrates
that he was not), he would not be considered a "radiation
exposed veteran" as that term is defined in 38 C.F.R.
§ 3.309(d)(3)(iv). This regulation requires presence at the
nuclear test site either during the "operational period" or
within six months thereafter. The operational period for
TRINITY was from July 16, 1945 to August 6, 1945.
See 38 C.F.R. § 3.309(d)(3)(v)(A) (2004). The alleged
exposure in this case did not occur until almost 20 years
later, in July 1962. Indeed, the veteran did not enter the
Army reserve for many years after the close of the TRINITY
operational period. Accordingly, he is not, and cannot, be
considered a radiation-exposed veteran by virtue of his
alleged service at the TRINITY test site in 1962.
Likewise, even if the veteran was present at a 1962
underground nuclear test, such would not avail him of the
presumptive service connection provisions contained in
38 C.F.R. § 3.309(d). The regulation specifically requires
presence at "a test involving the atmospheric detonation of
a nuclear device." See 38 C.F.R. § 3.309(d)(3)(ii)(A)
(2004). While the term atmospheric detonation includes
underwater detonation (see 38 C.F.R. § 3.309(d)(3)(iii)),
such does not include underground tests, which are not by
definition "atmospheric." Accordingly, even if the veteran
was present at an underground test, such would not make him a
"radiation exposed veteran" and avail him of the
presumptive provisions of 38 C.F.R. § 3.309(d).
Because the presumptive service connection provisions are not
applicable to this case, the Board will next examine the
claim under 38 C.F.R. § 3.311, which provides for special
development in cases involving radiogenic diseases.
Radiogenic diseases under 38 C.F.R. § 3.311
The provisions of 38 C.F.R. § 3.311 provide for development
of claims based on a contention of radiation exposure during
active service and post-service development of a radiogenic
disease. The provisions do not give rise to a presumption of
service connection, but rather establish a procedure for
handling claims brought by radiation exposed veterans or
their survivors. See Ramey v. Gober, 120 F.3d 1239, 1244
(Fed. Cir. 1997). Section 3.311 essentially states that, in
all claims in which it is established that a radiogenic
disease first became manifest after service, and it is
contended that the disease resulted from radiation exposure,
a dose assessment will be made. However, absent competent
evidence that the veteran was exposed to radiation, VA is not
required to forward the claim for consideration by the Under
Secretary for Benefits. See Wandel v. West, 11 Vet. App.
200, 204-205 (1998).
As noted above, the veteran's death was the result of colon
cancer. Colon cancer is a radiogenic disease listed in
§ 3.311 (b)(2). However, before additional development under
§ 3.111 need be accomplished, competent evidence that the
veteran was exposed to ionizing radiation must be present.
See Wandel, 11 Vet. App. at 205. In the instant case, the
veteran's exposure to radiation turns on his presence or
absence at a nuclear test site in New Mexico in July 1962.
The evidence supporting the appellant's contention that the
veteran served at a nuclear test site in New Mexico consists
of her own statements and the statements of H.G. to the
effect that while on ADT in July 1962, the veteran was sent
to White Sands to observe missile detonation and perform
various tasks at the TRINITY test site or the site of
underground nuclear testing conducted as part of Operation
PLOWSHARE.
The evidence against this contention consists of the
veteran's service medical and personnel records, which fail
to show that he was present at a nuclear test site at any
time during either active or reserve duty. To the contrary,
these records fail to show that the veteran was assigned to
any location other than Ft. Bliss, Texas during the period at
issue (July 1962). The DTRA also indicated in its October
1998 letter that Army records did not show that the veteran
was ever present at a nuclear weapons test site or that he
otherwise participated in atmospheric nuclear testing. The
agency further indicated that a careful search of available
dosimetry data found no record of exposure for the veteran.
The NPRC further indicated in October 1998 that no DD Form
1141 (record of in-service radiation exposure) was in
existence for the veteran.
Additionally, no mention of radiation exposure is included in
the private treatment records or the records from the Social
Security Administration. Moreover, while the appellant
submitted a prodigious amount of Internet research materials
regarding nuclear testing and the effect of radiation
exposure, none of these materials placed either the veteran
or his unit at a nuclear test site, including one in New
Mexico, at any time in 1962.
By law, the Board is obligated under 38 U.S.C.A. § 7104(d) to
analyze the credibility and probative value of all the
evidence of record, account for the evidence which it finds
to be persuasive or unpersuasive, and provide reasons for its
rejection of any material evidence favorable to the veteran.
See, e.g., Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v.
Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet.
App. 36 (1994); see also Madden v. Brown, 125 F.3d 1477, 1481
(Fed. Cir. 1997) [holding that the Board has the authority to
"discount the weight and probity of evidence in the light of
its own inherent characteristics and its relationship to
other items of evidence"].
In the instant case, the Board places far greater weight of
probative value on the contemporaneous service department
records, which fail to show that the veteran served at White
Sands, the TRINITY test site, or at any other nuclear testing
facility during his time in service, than it does on the
recent statements of the appellant and H.G. made in
connection with a claim for monetary benefits. See Curry v.
Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence
has greater probative value than history as reported by the
claimant]; see also Cartright v. Derwinski, 2 Vet. App. 24,
25 (1991) [interest may affect the credibility of testimony].
In this regard, the Board places significant weight on the
DTRA's findings that the veteran was not stationed at a
nuclear test site during service and did not participate in
an atmospheric nuclear test. This evidence is supported by a
record search conducted by the NPRC which yielded no evidence
of radiation exposure, or the existence of a DD Form 1141,
for the veteran. To the contrary, these records show that
the veteran spent his two-week ADT period at Ft. Bliss,
Texas. No sojourns to the New Mexico desert to observe
nuclear tests or dig latrines and/or foxholes at the TRINITY
site are indicated.
In short, all objective evidence does not place the veteran
at the site of any nuclear testing. The Board finds it
particularly persuasive that no dosimetry information has
been located with respect to the veteran. If, as claimed by
the appellant, the veteran had worked in a nuclear test zone,
it would be expected that such would be of record. It is
not. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd
sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir.
2002) [the definition of evidence encompasses "negative
evidence" which tends to disprove the existence of an alleged
fact, i.e., the lack of evidence is itself evidence].
No other radiation exposure is established by the record or
contended by the appellant. Because the probative evidence
of record does not establish the veteran's presence at White
Sands, the TRINITY site, or the site of any other nuclear
test, and because no other credible evidence of radiation
exposure is present, the special development provisions of
38 C.F.R. § 3.111 are not for application in this case.
Accordingly, the Board will proceed to consider the claim on
the basis of direct service connection.
(iii) Direct service connection - Combee
Notwithstanding the foregoing, the United States Court of
Appeals for the Federal Circuit in Combee determined that the
regulations governing presumptive service connection for
radiation exposure do not preclude a veteran from
establishing service connection with proof of actual direct
causation. See Combee, 34 F.3d at 1043-1044; see also 38
C.F.R. § 3.303 (d) (2004). Accordingly, the Board will
proceed to evaluate the veteran's claim under the regulations
governing direct service connection.
As discussed in greater detail above, in order to establish
service connection for death, there must be (1) evidence of
death; (2) evidence of in-service incurrence or aggravation
of a disease or injury; and (3) medical evidence of a nexus
between the claimed in-service disease or injury and death.
Cf. Hickson v. West, 12 Vet. App. 247, 253 (1999).
There is no question that element (1) has been met. The
Board's discussion will therefore focus on elements (2) and
(3).
With respect to element (2), as explained above, the medical
records are completely negative for diagnosis or treatment of
colon cancer during service. Moreover, as explained above,
the weight of the probative evidence of record does not
indicate that the veteran was exposed to ionizing radiation
in service. Element (2) has therefore not been satisfied and
the appellant's claim fails on that basis alone.
For the sake of completeness, the Board will address the
final Hickson element, medical nexus. In this case, there is
no competent medical evidence of record addressing the
potential etiological relationship between the veteran's
fatal colon cancer and his alleged radiation exposure. In
the absence of radiation exposure, such opinion would be a
manifest impossibility. Cf. Charles v. Principi, 16 Vet.
App. 370, 374 (2002).
The only evidence serving to relate the veteran's death to
his alleged radiation exposure emanates from the appellant
and H.G. However, as lay persons without medical training,
the appellant and H.G. are not competent to determine the
etiology of the veteran's fatal colon cancer. See Espiritu
v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also
38 C.F.R. § 3.159 (a)(1) [competent medical evidence means
evidence provided by a person who is qualified through
education, training, or experience to offer medical
diagnoses, statements, or opinions]. Their opinions in this
regard are accordingly entitled to no weight of probative
value.
The Internet articles submitted by the appellant are
similarly not probative evidence. While these articles
suggest a relationship between exposure to ionizing radiation
and various disabilities, they do not specifically relate to
the veteran's case and in particular obviously do not contain
any analysis regarding the veteran's situation or a potential
dose estimate and its possible relationship to his death.
As such, these articles are of little probative value in the
instant case. Medical treatise evidence can, in some
circumstances, constitute competent medical evidence. See
Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38
C.F.R. § 3.159(a)(1) [competent medical evidence may include
statements contained in authoritative writings such as
medical and scientific articles and research reports and
analyses]. However, the Court has routinely held that
medical evidence is speculative, general or inconclusive in
nature, such as these articles, cannot support a claim. See
Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also
Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine
v. Brown, 9 Vet. App. 521, 523 (1996). Such is the case
here.
For the reasons expressed above the Board concludes that
Hickson element (3) has not been met, and the appellant's
claim fails on that additional basis.
Conclusion
The Board has considered the appellant's claim under all
three bases for service-connection of radiation exposure.
For the reasons explained above, a preponderance of the
evidence is against the appellant's claim of entitlement to
service connection for the cause of the veteran's death.
ORDER
Service connection for the cause of the veteran's death is
denied.
____________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs